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INTERNATIONAL TAX COOPERATION Perspectives from the Global South

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INTERNATIONAL TAX COOPERATION Perspectives from the Global South INTERNATIONAL TAX COOPERATION Perspectives from the Global South Edited by Manuel F. Montes, Danish and Anna Bernardo INTERNATIONAL TAX COOPERATION PERSPECTIVES FROM THE GLOBAL SOUTH Editors Manuel F. Montes, Danish and Anna Bernardo International Tax Cooperation Perspectives from the Global South South Centre POB 228, Chemin du Champ d’Anier 17 1211 Geneva 19, Switzerland © South Centre [2019] Printed by Schoechli Impression & Communication SA Technopôle 2 – 3960 Sierre This book is published by the South Centre. Reproduction of all or part of this publication for educational or other non-commercial pur- poses is authorized without prior written permission from the copy- right holder provided that the source is fully acknowledged and any alterations to its integrity are indicated. Reproduction of this publi- cation for resale or other commercial purposes is prohibited without prior consent of the copyright holder. The views expressed in this pub- lication are the personal views of the authors and do not necessarily represent the views of the South Centre or its Member States. Any mistake or omission in the text is the sole responsibility of the authors. ISBN 978-92-9162-049-4 ABOUT THE SOUTH CENTRE In August 1995 the South Centre was established as a permanent in- tergovernmental organization of developing countries. In pursuing its objectives of promoting South solidarity, South-South coopera- tion, and coordinated participation by developing countries in in- ternational forums, the South Centre has full intellectual indepen- dence. It prepares, publishes and distributes information, strategic analyses and recommendations on international economic, social and political matters of concern to the South. The South Centre enjoys support and cooperation from the governments of the countries of the South and is in regular working contact with the Non-Aligned Movement and the Group of 77 and China. The Centre’s studies and position papers are prepared by drawing on the technical and intellectual capacities existing within South governments and institutions and among individuals of the South. Through working group sessions and wide consultations, which involve experts from different parts of the South, and sometimes from the North, common problems of the South are studied and experience and knowledge are shared. TABLE OF CONTENTS PREFACE ....................................................................................... xiii ABOUT THE AUTHORS .............................................................. xvii CHAPTER 1 INTRODUCTION ............................................................................. 1 Danish, Manuel F. Montes, Daniel Uribe, Monica Victor CHAPTER 2 DEVELOPING COUNTRIES AND THE CONTEMPORARY INTERNATIONAL TAX SYSTEM : BEPS AND OTHER ISSUES .. 13 Marcos Aurélio Pereira Valadão I. INTRODUCTION ......................................................................... 13 II. THE CONTEMPORARY INTERNATIONAL TAX SYSTEM ............ 13 III. BEPS AND DEVELOPING COUNTRIES, AND SOME ASPECTS OF BRAZILIAN PRACTICES ..................... 16 IV. OTHER ASPECTS ....................................................................... 24 V. FINAL REMARKS ...................................................................... 26 CHAPTER 3 INTERACTION OF TRANSFER PRICING & PROFIT ATTRIBUTION: CONCEPTUAL AND POLICY ISSUES FOR DEVELOPING COUNTRIES ................................................. 27 Vinay Kumar Singh I. INTRODUCTION ......................................................................... 27 II. CONCEPTUAL ISSUES RELATED TO TAXING PROFITS ........... 27 II.1 FACTORS THAT CONTRIBUTE TO PROFITS OF ENTERPRISES ���� 27 II.2 JUSTIFICATION OF TAXATION IN A GLOBALIZED ECONOMY : THE BENEFIT PRINCIPLE ����������������������������� 29 II.3 RECOGNITION OF SALES AS AN ACTIVITY THAT CREATES VALUE FOR THE ENTERPRISE ................ 31 II.4 TP AS A TOOL TO PREVENT ARTIFICIAL SHIFTING OF PROFITS ...................................................... 33 vi III. TREATY PROVISIONS & CHANGES IN ARTICLE 7 IN 2010 BY THE OECD ................................................................ 35 III.1 TP PROVISIONS IN TAX TREATIES ................................... 35 III.2 TREATY PROVISIONS FOR ATTRIBUTING PROFITS TO PE .. 35 III.3 OECD/UN GUIDANCE ON METHODS FOR APPORTIONMENT FOR ATTRIBUTING PROFITS .............. 36 III.4 CHANGES IN ARTICLE 7 IN THE OECD MTC & ITS THREE DIFFERING VERSIONS ...................... 37 III.5 IMPLICATIONS OF CHANGES IN ARTICLE 7 BY OECD ..... 38 IV. LIMITATION OF FAR BASED PROFIT ATTRIBUTION ................ 38 IV.1 INCOMPATIBILITY OF OMITTING SALES WITH ECONOMIC THEORY AND COUNTRY PRACTICES ������������������������������� 39 IV.2 C ONCEPTUAL PROBLEMS IN APPLYING TP METHODS FOR PROFIT ATTRIBUTION ....................... 41 IV.3 PRACTICAL CONSTRAINTS: COMPLEXITIES, HIGH COSTS, TAX DISPUTES & TAX AVOIDANCE............ 43 IV.4 DEVELOPING COUNTRY PERSPECTIVE: THREAT OF VICIOUS CYCLE FROM TAX BASE EROSION ..................... 45 V. OPTIONS AVAILABLE & INFORMED CHOICES .......................... 45 V.1 OPTIONS FOR TP UNDER ARTICLE 9 OF TAX TREATIES .... 46 V.2 OPTIONS FOR PROFIT ATTRIBUTION TO PE .................... 47 V.3 OPTIONS UNDER ARTICLE 7 BASED ON UN MTC/ PRE-2010 OECD MTC ............................. 47 V.4 OPTIONS UNDER ARTICLE 7 BASED ON REVISED OECD MODEL TAX CONVENTION (2010) ...................................... 50 VI. CONCLUSIONS AND RECOMMENDATIONS ............................... 51 CHAPTER 4 TRANSFER PRICING: CONCEPTS AND PRACTICES OF THE “SIXTH METHOD” IN TRANSFER PRICING ............................. 53 Verónica Grondona I. INTRODUCTION ......................................................................... 53 II. THE PROBLEM OF THE VALUATION OF COMMODITIES .......... 54 III. ACTUAL POLICY EXPERIENCE ................................................. 56 III.1 LEGAL FRAMEWORK AND COURT DECISIONS IN ARGENTINA ................................................................... 57 vii III.2 OTHER SIMILAR SYSTEMS IN LATIN AMERICA .............. 64 III.3 IMPLEMENTATION IN AFRICAN COUNTRIES ................... 68 IV. ANALYSIS OF THE POLICY’S IMPACT AND LESSONS LEARNT FROM ARGENTINA ................................................................... 70 V. CONCLUSIONS AND RECOMMENDATIONS .............................. 78 REFERENCES ................................................................................ 80 APPENDIX 1 ................................................................................... 83 CHAPTER 5 IMPROVING TRANSFER PRICING AUDIT CHALLENGES IN AFRICA THROUGH MODERN LEGISLATION AND REGULATIONS ..................................................................... 87 Thulani Shongwe I. INTRODUCTION ......................................................................... 87 II. INCREASING COMPLIANCE AND BUILDING A POSITIVE RELATIONSHIP BETWEEN TAX ADMINISTRATION AND TAXPAYERS .............................................................................. 89 III. AUDITING A MULTINATIONAL IS A DIFFERENT BALL GAME .... 91 IV. APPROACHES AVAILABLE TO TAX ADMINISTRATIONS FOR TP AUDITS ......................................................................... 93 V. THE CHALLENGES OF AUDITING COMMODITY TRANSACTIONS �� 94 VI. NEW LEGISLATION AND REGULATIONS : A NEW BALL GAME ............................................................... 96 VII. PRICING COMMODITIES AND THE CHALLENGES FACED BY AUDITORS................................................................ 99 VIII. NEW LEGISLATION FOR COMMODITIES ................................. 101 IX. ATAF SUGGESTED APPROACH TO DRAFTING TRANSFER PRICING LEGISLATION AND SOME EXAMPLES OF ITS PRACTICAL USE ............................................................. 106 X. CONCLUSION AND RECOMMENDATIONS .............................. 110 ANNEX ........................................................................................ 112 viii CHAPTER 6 EXCHANGE OF INFORMATION: INDIAN EXPERIENCE, DEVELOPING COUNTRY IMPLICATIONS .............................. 115 Jahanzeb Akhtar I. INTRODUCTION ....................................................................... 115 II. EXCHANGE OF INFORMATION UPON REQUEST (EOIR) IN INDIA .. 117 II.1 LEGAL FOUNDATION & ADMINISTRATIVE SET UP ........... 117 II.2 STUDY ON END USER EXPERIENCE WITH EOIR 9............... 11 III. AUTOMATIC EXCHANGE OF INFORMATION (AEOI) IN INDIA 3.... 12 III.1 FATCA THROUGH IGA ........................................................ 124 III.2 COMMON REPORTING STANDARDS (CRS) FOR AEOI 6... 12 III.3 COUNTRY BY COUNTRY REPORTING (CbCr) ................... 128 IV. REFLECTIONS AND LESSONS FOR DEVELOPING COUNTRIES ��� 131 IV.1 POLITICAL WILL ................................................................... 131 IV.2 SHARING COST-BENEFIT INFORMATION ......................... 132 IV.3 MULTILATERAL SHOULD REMAIN MULTILATERAL 3...... 13 IV.4 T RANSPARENCY STANDARDS UNMATCHED TO DEVELOPMENT LEVELS ................................................. 134 IV.5 INFORMATION USE BEYOND TAX PURPOSE ..................... 135 IV.6 A LL TOGETHER FOR FINANCING SDGS .......................... 135 V. CONCLUSION........................................................................ 136 REFERENCES ............................................................................... 138 CHAPTER 7 ILLICIT FINANCIAL FLOWS : CONCEPTUAL AND PRACTICAL ISSUES ........................... 143 Irene Ovonji-Odida and Algresia Akwi-Ogojo I. INTRODUCTION ......................................................................
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